Life is fleeting. As it happens, so are many marriages. The ending of either can be unfortunate and untimely. However, the tragedy is compounded when someone dies while dissolving their marriage. It can create new uncertainty, rendering some issues moot while leaving others up in the air for the courts to address.
So, what happens if one spouse dies during the divorce process? We’ll answer that question in this article.
What Happens if One Spouse Dies During a Divorce?
It’s rare for one party in a divorce to pass away unexpectedly, but it’s not unheard of. Thankfully, Texas law sets firm guidelines for what should happen next if one spouse dies during a divorce proceeding. Let’s take a look at the law.
When one party to a divorce dies before a judgment is rendered, the divorce dies with them. The case cannot continue. Death ends the marriage, making any legal dissolution action meaningless.
“In Texas, marriage may only be terminated by death or court decree.” — Bizzle v. Baker (Tex. App., 2022)
One of the attorneys will file a suggestion of death letting the court know that their client has passed away. Next, the trial court will dismiss the divorce case. The surviving party will then be treated as a widowed spouse, not a divorcee.
So then, the question becomes ….
What Happens to Property Division and the Children?
This gets into more of a legal gray area. How a court divides the marital estate — if it divides the estate at all — depends on two factors:
- how far the divorce proceeded before one spouse’s untimely passing, and
- plans or provisions made by the deceased spouse ahead of time.
If the Divorce is Pending
If one spouse dies during the divorce before the parties can enter into mediation or have their case decided before a Texas family court, then the entire case must get dismissed.
This follows precedent from a number of rulings which hold that “a cause of action for a divorce is purely personal and abates on either party’s death prior to the rendition of judgment on the merits.”” — Hearn v. Hearn (Tex. App., 2022)
Children and Conservatorship
The passing of one spouse during divorce renders moot any determinations about child custody and conservatorship. The surviving parent naturally becomes the managing conservator, and is entitled to 100 percent possession of the children. It does not matter what the surviving parent’s role had been since the filing of the divorce.
Temporary orders relating to the children are not necessarily affected by one parent’s passing during the divorce. While the court would no longer have jurisdiction over divorce matters, it can continue to issue orders relating to the best interests of the child or children until they are no longer considered minors.
Marital property is distributed according to each party’s estate planning. If the deceased spouse did not have a will, then seperate and community property will be divided in a matter pursuant to Texas probate law. However, there is no penalty for being in divorce proceedings when the other spouse died.
If the deceased spouse left a will, then property issues must be addressed by a probate court. Your family law attorney can help you transition from a dismissed divorce to a probate case by making required court filings and recommending the right probate lawyer for your situation.
Legal Tip: Update Your Will After Filing for Divorce
No matter which spouse filed for divorce first, if you have substantial property, one of your first steps should be to arrange a meeting with a probate attorney. You can do this on your own or with help from your divorce lawyer.
You should update your will to ensure that, in case you die, your property passes to your intended relatives, children, friends, church, or non-profit organization — not to someone who will no longer be related to you after divorce.
If a Mediated Settlement Agreement is in Place
Divorces can get pretty contentious. However, not all require the intervention of a judge or jury to impose property division and co-parenting plans upon them. Many couples choose to mediate a settlement out of court, then submit their agreement to the court for approval and a final decree of divorce.
A court will consider a mediated settlement agreement valid and binding, if:
- the agreement makes clear, in boldface type or capital letters, that the deal is not subject to revocation;
- it is signed by both parties, or spouses; and
- it is signed by the parties’ attorneys, if any, who were present when the spouses signed the agreement.
— Texas Family Code, Section 6.602
Mediated Settlements Survive Death
For property division, a mediated settlement agreement (MSA), becomes a legally binding document if one of the spouses dies before a court can issue a final decree of divorce.
In other words, a mediated settlement agreement survives the death of an estranged spouse. The court will uphold and enforce the agreement so long as it meets the three criteria listed above.
Of course, this applies only to property division, as matters of child conservatorship are rendered moot by the death of one parent during the divorce process. The surviving parent becomes managing conservator.
Permanent Separations May Also Survive Death
Not all Texas divorces make it all the way to a final decree of dissolution. Sometimes, couples will enter a collaborative divorce process and emerge with a Partition and Exchange Agreement, which is a permanent separation, but not a divorce.
In a post-nuptial Partition and Exchange Agreement, the couple agrees to remain technically married for tax purposes or other considerations, but legally divide assets, debts, and bank accounts. This agreement will survive the death of one spouse, unless a provision in it dissolves the agreement upon one spouse’s death.
What if an Ex-Spouse Dies After the Divorce is Final?
Once a court has issued its final decree of divorce, none of the provisions in it can be reversed or abated by one spouse’s death. The surviving spouse is only the ex-spouse.
Any community property awarded to the deceased spouse either by mediated settlement or through a judgment of the court remains with their individual estate. It does not jump back over to the surviving ex-spouse.
Child Possession and Conservatorship
If the deceased spouse was the primary conservator of the divorced couple’s children, then things get a little gray. Settled law has said that the surviving parent becomes entitled to physical possession of the children, since a dead parent cannot raise them. The passing of a primary parent nullifies the portion of the divorce decree that awarded their conservatorship.
The Best Interests of the Child
However, the court that issued the decree retains jurisdiction over the minor children, and must still consider what is in their best interests. This leaves open the possibility that the court might not automatically transfer managing conservatorship to the surviving parent, especially if it believes such an arrangement could put the children at risk of physical, mental, or emotional impairment.
“… although the death of the managing conservator terminates that portion of the former decree governing conservatorship and possession, it does not terminate the continuing jurisdiction of the court that rendered that decree over the children, who are still subject to further orders and supervision by the court as long as they are minors.” — Dohrn v. Delgado (Tex. App. 1996)
Narrow Appeals Window
There is a 30-day window to appeal the trial court’s divorce decree, however, the death of one spouse is rarely considered grounds for appeal.
Never Get Caught Off Guard
You have enough to worry about when you get divorced. The last thing you want to do is plan for your ex-partner’s death, or for that matter, yours. We understand that. However, there are always steps you and your Texas Family Law attorney can take to make sure your interests are protected no matter what arises. Call 214-884-3775 to begin your free case assessment.